[Federal Register Volume 69, Number 28 (Wednesday, February 11, 2004)]
[Proposed Rules]
[Pages 6635-6639]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 04-2869]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 648

[Docket No 040122024-4024-01; I.D. 010904A]
RIN 0648-AR75


Fisheries of the Northeastern United States; Tilefish Fishery

AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and 
Atmospheric Administration (NOAA), Commerce.

ACTION: Proposed rule; request for comments.

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SUMMARY: NMFS proposes to reinstate the permit requirements for 
commercial tilefish vessels specified under 50 CFR 648.4(a)(12). These 
permit requirements were set aside in a recent Federal Court Order 
(Court Order) in Hadaja v. Evans (May 15, 2003) on the grounds that the 
limited access program contained in the Tilefish Fishery Management 
Plan (FMP) violated National Standard 2 of the Magnuson-Stevens Fishery 
Conservation and Management Act (Magnuson-Stevens Act). NMFS is 
proposing to reinstate these permit requirements based on additional 
information provided by the Mid-Atlantic Fishery Management Council 
(Council) that supports the limited access permit criteria contained in 
the FMP. This action will enable NMFS to manage the tilefish fishery in 
accordance with the provisions of the Magnuson-Stevens Act by helping 
end overfishing, and ensuring that the stock rebuilding objective of 
the FMP is achieved.

DATES: Comments must be received on or before March 12, 2004.

ADDRESSES: Comments on the proposed rule should be sent to Patricia A. 
Kurkul, Regional Administrator (RA), Northeast Region, NMFS, One 
Blackburn Drive, Gloucester, MA 01930-2298. Mark the outside of the 
envelope ``Comments on Tilefish Action.'' Comments may also be 
submitted via facsimile (fax) to (978) 281-9135. Comments may also be 
submitted via e-mail to the following address: [email protected].
    Copies of the Regulatory Impact Review (RIR) and Initial Regulatory 
Flexibility Analysis (IRFA) prepared for this action are available upon 
request from the RA at the above address. Copies of the Final 
Environmental Impact Statement (FEIS) prepared for the FMP may be 
obtained by contacting Daniel T. Furlong, Executive Director, Mid-
Atlantic Fishery Management Council, Room 2115 Federal Building, 300 
South New Street, Dover, DE 19904. The FEIS, which was completed in 
2001, contained a complete analysis of the impacts of the permit 
requirements contained in the FMP. Because nothing has changed since 
the FEIS was completed that would affect that determination, further 
analysis under the National Environmental Policy Act (NEPA) is 
unnecessary.

FOR FURTHER INFORMATION CONTACT: Allison Ferreira, Fishery Policy 
Analyst, (978) 281-9103, fax (978) 281-9135, e-mail 
[email protected].

SUPPLEMENTARY INFORMATION:

Background

    The tilefish fishery is managed by the Council under the FMP. The 
FMP was approved by the Secretary of Commerce (Secretary) on May 10, 
2001, and became effective on November 1, 2001 (66 FR 49136; September 
26, 2001). The Tilefish Management Unit is all golden tilefish under 
U.S. jurisdiction in the Atlantic Ocean north of the Virginia/North 
Carolina border. The primary objective of the FMP is to eliminate 
overfishing and rebuild the tilefish stock through the implementation 
of a stock rebuilding program. Measures in the FMP established to 
achieve this objective include a limited entry program; a tiered 
commercial quota, based on the limited entry program; permit and 
reporting requirements for commercial vessels, operators, and dealers; 
a prohibition on the use of gear other than longline gear by limited 
access tilefish vessels; and an annual specification and framework 
adjustment process.
    The stock rebuilding schedule established by the FMP consists of a 
constant harvest strategy under which the TAL is set at 1.995 million 
lb (905,000 kg) each year for the entire 10-year rebuilding schedule. 
The objective of the tilefish rebuilding schedule is to reduce the 
fishing mortality rate (F) from its 1998 level of F=0.45, to F=0.29 in 
the first year of the FMP, and gradually down to F=0.11 in the tenth 
year of the FMP. These measures are designed to provide at least a 50-
percent probability of achieving biomass at maximum sustainable yield 
(Bmsy) by October 31, 2011. The annual TAL is apportioned as follows. 
First, a total allowable catch (TAC) of up to 3 percent of the TAL may 
be set aside for the purpose of funding tilefish research. Following 
any reduction due to the establishment of a research TAC, the TAL is 
reduced by 5 percent to account

[[Page 6636]]

for incidental catch. Finally, the remaining TAL is divided among three 
limited access permit categories as follows: Full-time tier 1, 66 
percent; Full-time tier 2, 15 percent; and Part-time, 19 percent.
    A Federal Court Order in Hadaja v. Evans set aside the regulations 
pertaining to the permit requirements for commercial tilefish vessels 
specified under Sec. 648.4(a)(12). In its order, the Court concluded 
that the tilefish limited access program violated National Standard 2 
of the Magnuson-Stevens Act 16 U.S.C. 1801 et seq.) because it was not 
based on the best scientific information available. The Court held that 
the Secretary must adopt a plan that is based on the best scientific 
information available, which may be the existing plan, but only if the 
evidence in the administrative record (record) clearly supports it.
    Because the Court held that NMFS's tilefish limited access program 
was inconsistent with National Standard 2, its decision to set aside 
the permit requirements has a substantial impact on the other 
regulations implementing the FMP since the trigger for many of these 
regulations implementing the FMP is the issuance a valid limited access 
or incidental tilefish permit. As a result, in addition to the vessel 
permit requirements, the vessel operator permit requirements under Sec. 
648.5(a), the vessel reporting requirements under Sec. 648.7(b)(2)(ii), 
the observer coverage regulations under Sec. 648.11(a), and the 
incidental catch limit under Sec. 648.292 are no longer in effect. As a 
result, the ability of NMFS to manage the tilefish fishery in 
accordance with the Magnuson-Stevens Act has been impacted.
    The proposed action would reinstate the vessel permitting 
requirements of the FMP, specified under Sec. 648.4(a)(12), that were 
set aside by the Court based upon a supplemental administrative record 
developed in conjunction with the Council to support the limited access 
permit criteria established in the FMP. The purpose of this action is 
to help end overfishing, and ensure that the stock rebuilding objective 
of the FMP is achieved. Because the regulatory text for the tilefish 
permitting requirements was never formally removed by NMFS, this 
proposed rule does not contain any new regulatory language.
    The Court Order also set aside the regulations prohibiting the use 
of all gear other than longline gear for limited access tilefish 
vessels specified under Sec. 648.294. Due to a lack of information to 
support reinstating the ban on the use of trawl gear in the directed 
tilefish fishery, the Tilefish Committee (Committee), Tilefish 
Technical Team (Technical Team), and Tilefish Industry Advisors 
(Industry Advisors) recommended not to address the trawl gear issue in 
this action at a September 18, 2003, meeting held to discuss the 
development of a supplemental administrative record. Thus, this action 
would remove the prohibition on the use of gear other than longline 
gear for limited access tilefish vessels, and proposes only to 
reinstate the tilefish vessel permitting requirements as noted above.
    The Council passed a motion at its August 5-7, 2003, meeting to 
move forward with developing the supplemental administrative record 
needed to reinstate the permitting requirements of the FMP. At the 
September 18, 2003, meeting held to discuss the supplemental 
administrative record, the Tilefish Committee, the Technical Team, and 
the Industry Advisors discussed how the criteria for each limited 
access category were developed, based upon the landings data that were 
available at that time. This discussion was continued at a Committee 
meeting held in conjunction with the October 7-9, 2003, Council 
meeting. Based upon the discussions that took place at these two 
meetings, a supplemental record has been compiled that describes in 
detail the steps taken by the Council and Committee in developing the 
limited access program alternatives contained in the FMP, and the 
rationale behind their selection of a preferred limited access program. 
A summary of the information contained in the supplemental record is 
provided in the following paragraphs.

Summary of the Supplemental Record for Tilefish

    Management of the tilefish resource was first considered in earnest 
in 1993, when a notice of intent (NOI) to prepare an environmental 
impact statement (EIS) was published on February 24, 1993 (58 FR 
11217). A control date for the fishery was then published on June 15, 
1993 (58 FR 33081). At that time, Council staff proposed several 
considerations for a management scheme, including a new entrant 
moratorium, an effort reduction program, and an overall quota with 
potential sub-quotas. At an Industry Advisors Subcommittee meeting in 
February 1994, the concept of dividing the tilefish fishery into full-
time and part-time vessels was raised. This concept was based largely 
on the management scheme for the Atlantic sea scallop fishery, which 
consists of Full-time, Part-time, and Occasional vessel permit 
categories. However, due to several more pressing fishery management 
issues, the Council did not revisit tilefish management until 1999. On 
April 5, 1999 (64 FR 16417), a new NOI was published in the Federal 
Register for the EIS prepared in conjunction with the FMP, and a public 
scoping meeting was held on April 27, 1999.
    In considering limiting access to the tilefish fishery, the Council 
had to consider several factors mandated under section 303(b)(6) of the 
Magnuson-Stevens Act. Two primary factors to be considered were present 
participation in the fishery and historical fishing practices in, and 
dependence on the fishery. The only data available to the Council with 
which to develop a limited entry scheme were vessel permit and landings 
data. This information was used to generate tables reflecting annual 
individual vessel landings. The information enabled the Council to 
exercise an element of judgement in identifying those natural breaks in 
the landings data, and the overall time frame that should be used as 
the qualifying criteria for the individual categories to reflect their 
differing levels of participation in the tilefish fishery.
    Upon reviewing landings data provided by the NMFS Northeast 
Fisheries Science Center (Center), the Committee, along with the 
Industry Advisors, began to formulate qualifying criteria for a 
directed and indirect tilefish fishery at the April 1, 1999, Committee 
meeting. Based upon the landings data, the Industry Advisors suggested 
that a minimum of 250,000 lb (113,398 kg) be used as the basis for 
qualifying a permit for the directed fishery, and a minimum of 10,000 
lb (4,536 kg) be used as the basis for qualifying for the incidental 
permit. Furthermore, it became apparent that there was a considerable 
disparity between vessels that landed 250,000 lb (113,398 kg) of 
tilefish a year, and those that did not. As a result, a Committee 
member recommended that there be a Full-time and Part-time category; 
the same concept that was raised at the February 1994 Committee 
meeting. The concept of subjecting the Incidental category to a trip 
limit was also raised at this meeting. After some discussion, the 
Committee elected to recommend that the Council move forward with three 
permit categories: Full-time, Part-time, and Incidental. However, the 
Committee requested that the Center conduct further analysis of 
tilefish landings data.
    At the May 6, 1999, Committee meeting, the concept of a two-tier 
Full-time permit category was adopted by the

[[Page 6637]]

Committee. At this meeting, the Committee developed limited entry 
criteria for each of the proposed permit categories, based upon 
landings information provided by the Center. These data indicated that 
four vessels landed at least 250,000 lb (113,398 kg) of tilefish 
annually, for several of the last 6 years for which there were complete 
landings data. Based upon this information, the Committee developed the 
following criteria for the Full-time, tier 1 category: 250,000 lb 
(113,398 kg) per year for 3 years from 1993-1998, with at least 1 lb 
(0.5 kg) of tilefish landed prior to the June 15, 1993, control date. 
For the Full-time, tier 2 category, the Committee suggested qualifying 
criteria of 30,000 lb (13,608 kg) per year for 3 years from 1993-1998, 
with at least 1 lb (0.5 kg) of tilefish landed prior to the control 
date of June 15, 1993. For the Part-time category, the Committee 
suggested qualifying criteria of 10,000 lb (4,536 kg) per year for any 
1 year from 1988-1993, and 10,000 lb (4,536 kg) per year in any 1 year 
from 1994-1998. The limited entry criteria for each alternative 
reflected elements of present and historical participation, as well as 
dependence on the fishery as required under section 303(b)(6) of the 
Magnuson-Stevens Act. The qualifying period ended with 1998, since this 
was the last year for which complete annual landings data were 
available. This alternative ultimately became limited entry Option 2 in 
the FMP.
    The Council then considered the Committee's recommendation at its 
May 25, 1999, meeting. At this meeting, industry members voiced concern 
over the selection of 1988 as the cut-off year for historical 
participation, since a number of them had been in the fishery since the 
late 1970s to early to mid-1980s, but had left the fishery for a 
variety of reasons. The industry group representing these individuals 
was the Historical Tilefish Coalition. The 1988 cut-off year was 
originally selected simply because the Center had only analyzed data 
back this far, due to limitations in data prior to 1988. However, the 
data analyzed were not considered to be complete, because there was no 
requirement for vessel owners to report their tilefish landings data 
until the mid-1990s. Even then, vessels only had to report these 
landings if they held a Federal fisheries permit. After some debate, 
the Council adopted a new alternative for the public hearing document 
that extended the qualification time-period for the Full-time and Part-
time categories back to 1977. Under this alternative, which is Option 5 
in the FMP, a vessel could qualify for the Full-time category if it 
landed 50,000 lb (22,680 kg) in any one year between 1977 and June 15, 
1993, or for the Part-time category if it landed 10,000 lb (4,536 kg) 
of tilefish in any one year between 1977 and June 15, 1993. The year 
1977 was selected because the Center had been able to estimate landings 
back to 1977, but was unable to provide landings information for 
individual vessels. Some Council members expressed concern about the 
number of vessels that this alternative would let into the fishery, 
given the reduced quota needed to rebuild the fishery within 10 years.
    The public hearing document for the FMP ultimately contained five 
options for limited entry criteria. These are represented as Options 1 
through 5 in the final FMP document (see Table 1). The public hearing 
document also explained that there would be a sub-quota for each permit 
category, which would be based on the percentage of the overall 
tilefish landings from 1988 through 1998 by the vessels that qualified 
for each permit category. Following public hearings on the FMP, which 
took place in August 1999, the Council convened on October 14, 1999, to 
inform its members of points of contention regarding the alternatives 
in the FMP, and to answer any questions. Final decision on the FMP was 
delayed until November 23, 1999, when a special Council meeting was to 
be held to address the FMP. The location for this meeting was selected 
to be more accessible to tilefish fishermen.

    Table 1. Limited Access Program Alternatives in the Tilefish FMP
------------------------------------------------------------------------
                                         Limited Access Program Tilefish
                 Option                         Landings Criteria
------------------------------------------------------------------------
Option 1                                 ...............................
Full-time..............................  At least 50,000 lb (22,680 kg)
                                          in 1 year from 1988-1993, and
                                          at least 25,000 lb (11,340 kg)
                                          per year for 2 years from 1994-
                                          1998.
Part-time..............................  At least 10,000 lb (4,536 kg)
                                          in 1 year from 1988-1993, and
                                          at least 10,000 lb (4,536 kg)
                                          in 1 year between 1994-1998.
 
Option 2 (Preferred alternative in FMP)  ...............................
Full-time: tier 1......................  At least 250,000 lb (113,398
                                          kg) per year for 3 years
                                          between 1993-1998, and at
                                          least 1 lb (0.5 kg) landed
                                          prior to June 15, 1993.
Full-time: tier 2......................  At least 30,000 lb (13,608 kg)
                                          per year for 3 years between
                                          1993-1998, and at least 1 lb
                                          (0.5 kg) landed prior to June
                                          15, 1993.
Part-time..............................  Same as Option 1.
 
Option 3                                 ...............................
Full-time..............................  Same as Option 1.
Part-time..............................  At least 10,000 lb (4,536 kg)
                                          in 1 year between 1988 and
                                          June 15, 1993.
 
Option 4                                 ...............................
Full-time..............................  At least 50,000 lb (22,680 kg)
                                          in 1 year between 1988 and
                                          June 15, 1993.
Part-time..............................  Same as Option 3.
 
Option 5                                 ...............................
Full-time..............................  At least 50,000 lb (22,680 kg)
                                          in 1 year from 1977 to June
                                          15, 1993.
Part-time..............................  At least 10,000 lb (4,536 kg)
                                          in 1 year from 1977 to June
                                          15, 1993.
 
Option 6                                 ...............................
Full-time: tier 1......................  Same as Option 2.
Full-time: tier 2......................  Same as Option 2.
Part-time..............................  Same as Option 1, or at least
                                          28,000 lb (12,701 kg) in 1
                                          year between 1984-1993.
------------------------------------------------------------------------

    Virtually every active tilefish fisherman was present at the 
November 1999 Council meeting. In addition, the historical participants 
from New Jersey were represented by the Historical Tilefish Coalition. 
In debating the appropriate qualifying criteria to be adopted for the 
Full-time category, the Council concluded that the Full-time category 
should be split into tier 1 and tier 2 levels. This decision was 
supported by the fact that four vessels landed considerably more 
tilefish than any other vessel active in the tilefish fishery. As a 
result, the Council adopted the following qualifying criteria for the 
Full-time, tier 1 category: 250,000 lb (113,358 kg) per year for 3 
years between 1993-1998. However, the Council deliberated over the 
criteria to be adopted for the Full-time, tier 2 category. There was 
some sentiment among Council members to adopt qualifying criteria more 
in line with those proposed under Options 1 and 4, which were 50,000 lb 
(22,680 kg) in 1 year between 1988-1993, and at least 25,000 lb (11,340 
kg) per year for 2 years during 1994-1998. This was because the Council 
was concerned about the number of vessels that would qualify for

[[Page 6638]]

the limited access fishery, given the reduced annual quota that would 
apply to the fishery. This became less of a concern once the Council 
decided to apply sub-quotas to each of the permit categories. These 
sub-quotas were to be a percentage of the overall quota that would 
reflect the percentage of the overall tilefish landings from 1988 
through 1998 by vessels qualifying for each permit category. Therefore, 
as more vessels qualified for a particular permit category, the larger 
the percentage of the overall quota would be allocated to that permit 
category. The Council ultimately adopted a landings requirement of 
30,000 lb (13,608 kg) for the Full-time, tier 2 category, based on the 
1988 through 1998 landings data. This level of landings was set high 
enough above the landing requirement being considered for the Part-time 
category (10,000 lb (4,536kg)) to represent a level of participation in 
the fishery that could be considered full-time. Thus, the qualifying 
criteria adopted by the Council for the Full-time, tier 2 category was 
as follows: 30,000 lb (13,608 kg) of tilefish for any 3 years between 
1993 and 1998, with at least 1 lb (0.5 kg) landed prior to June 15, 
1993.
    The Council considered a number of alternative qualifying criteria 
for the Part-time category, bearing in mind their need to address the 
historical participants in the fishery. Recognizing that the landing 
requirement was 30,000 lb (13,608 kg) for the Full-time, tier 2 
category, the Council looked at a lower annual poundage level to 
reflect the part-time nature of the fishery. The Council was concerned 
that the level be set high enough to limit the number of vessels that 
would qualify for this category. Ultimately, the Council settled on a 
qualifying poundage of 10,000 lb (4,536 kg) for the Part-time category, 
since it was significantly below the poundage requirement for the Full-
time, tier 2 category, yet above the level of landings for those 
vessels that truly landed only an incidental catch of tilefish. 
However, the difficult decision facing the Council was how far back to 
set the qualifying window. According to the information provided in the 
public hearing document, the inclusion of vessels landing tilefish back 
to 1977 (Option 5) would allow as many as 119 vessels into the fishery. 
Thus, extending the qualifying period back to 1977 raised issues of 
equity and conservation, but beginning the qualifying window in 1988 
failed to capture the time period for the historical fishery. 
Furthermore, there was a lack of vessel-specific information prior to 
1988. At the Council's suggestion, members of the tilefish industry 
brought forward their landings data at the November 23, 1999, Council 
meeting. At this meeting, industry proposed that the Council consider a 
modification to Option 2 by allowing an alternative basis for 
qualifying for the Part-time category. Under this modified Option 2, 
vessels could qualify for the Part-time category if they could prove 
tilefish landings of 28,000 lb (12,701 kg) in any year between 1984 and 
1993. Utilizing the landings data brought forward by the tilefish 
industry and new data provided by the Center, the Council was able to 
ascertain that this modified Option 2 would allow 42 vessels to qualify 
for the Part-time category. While this new alternative allowed 32 more 
vessels to qualify for the Part-time category than under Option 1, it 
allowed 7 fewer vessels to qualify than under Option 3, which was the 
Council's preferred alternative in the public hearing document. This 
revised Option 2, which became Option 6 in the final FMP, was 
attractive to members of the Council, since it limited participation in 
this category more than its previously preferred option, and it 
captured a time-frame when the historical fishery was still going 
strong. After much deliberation, the Council adopted the new Option 6. 
Thus, the industry proposal, referred to as ``the compromise'' in the 
FMP, was carefully considered, and the reasons for adopting this 
option, well thought out. Therefore, the reference of this option as a 
``compromise'' in the FMP is inaccurate.
    As stated earlier, the Court set aside the permitting requirements 
of the FMP on the grounds that they violated National Standard 2. 
National Standard 2 requires that ``[c]onservation and management 
measures shall be based on the best scientific information available.'' 
The Guidelines for the National Standards, which are found under 50 CFR 
part 600, indicate that scientific information includes, but is not 
limited to, information of a biological, ecological, or social nature. 
The focus of the FMP was on the biological and ecological data 
pertaining to the tilefish fishery because the fishery had been 
determined by the Secretary to be overfished. However, neither the 
biological or ecological data in the FMP served as the direct basis for 
the tilefish permitting scheme. Since the biological data clearly 
showed that the tilefish resource was overfished, the conclusion was to 
reduce fishing effort. The management method adopted by the Council to 
reduce fishing effort was limitation on access to the tilefish fishery. 
Thus, biological data were an indirect basis for the Council's 
consideration of a limited access system. The ecological data available 
to the Council did not factor into the creation of a limited access 
system, since the Council concluded that there was no basis to limit 
the number of vessels in the fishery to protect essential fish habitat. 
As stated previously, the only data available to the Council upon which 
to develop a limited entry system were the vessel permit and Center 
landings data. These data were utilized by the Council to develop 
several options for a limited access system. In addition, these data 
were utilized to determine each permit category's share of the overall 
quota based on landings by vessels that would qualify for that permit 
category, and to determine the exclusionary impact on certain vessels 
of selecting various qualifying criteria.

Classification

    This proposed rule has been determined to be not significant for 
purposes of E.O. 12866.
    NMFS has prepared an IRFA that describes the economic impact this 
proposed rule, if adopted, would have on small entities. The IRFA 
prepared for this action follows NMFS's ``Guidelines for Economic 
Analysis of Fishery Management Actions'' (NMFS's guidelines). A 
description of the action, why it is being considered, and the legal 
basis for this action are contained at the beginning of this section in 
the preamble and in the SUMMARY. A summary of the analysis follows:
    The universe of vessels impacted by this action are those vessels 
that qualified for a limited access permit under the requirements 
established in the FMP, and those vessels that hold an incidental 
tilefish permit. A total of 32 vessels qualified for limited access 
permits under the limited access criteria established in the FMP. In 
addition, there are currently 1,650 vessels holding an open access 
Incidental tilefish permit, although they are no longer required to 
hold any Federal permit to land tilefish. All of these vessels are 
considered to be small entities.
    Section 4.9.3 of the FMP provides an analysis of the economic 
impacts resulting from the various quota alternatives and limited entry 
alternatives considered in the FMP. According to this analysis, the 
economic impact to vessels qualifying under each limited access 
category ranged from expected revenue losses of 50 percent or greater 
for 1 vessel, to an expected increase in revenues for 181 vessels. A 
total of 10 vessels were projected to be impacted by revenue losses of 
5 percent or greater, 35 vessels were projected to

[[Page 6639]]

have no change in revenue, and 24 vessels were projected to incur 
revenue losses of less than 5 percent. By limited access category, all 
4 vessels (100 percent) that qualified for the Full-time, tier 1 
category were projected to incur revenue losses of greater than 5 
percent, while only 1 vessel (25 percent) in the Full-time tier, 2 
category, and no vessels in the Part-time category were projected to 
incur revenue losses of greater than 5 percent. Furthermore, this 
analysis projected that 5 vessels (3 percent) in the Incidental 
category would incur revenue loss of greater than 5 percent, with 1 
vessel incurring revenue losses of 50 percent or greater.
    The FMP considered six limited entry alternatives as a means of 
controlling effort in the tilefish fishery. Each of these alternatives 
consisted of at least two different limited access categories, Full-
time and Part-time, having different qualifying criteria. The 
alternatives are summarized as follows:
    Option 1: Part-time - At least 10,000 lb in 1year 1988-1993, and at 
least 10,000 lb in 1 year between 1994-1998; Full-time - At least 
50,000 lb in 1 year 1988-1993, and at least 25,000 lb per year for 2 
years during 1994-1998.
    Option 2: Part-time - Same as Option 1; Full-time, Tier 1 - At 
least 250,000 lb per year for 3 years between 1993-1998, and at least 
1lb of tilefish landed prior to the June 15, 1993, control date; Full-
time, Tier 2 - At least 30,000 lb per year for 3 years 1993 and 1998, 
and at least 1lb of tilefish landed prior to the June 15, 1993, control 
date.
    Option 3: Part-time - At least 10,000 lb in 1 year between 1988 and 
June 15, 1993; Full-time - Same as Option 1.
    Option 4: Part-time - Same as Option 3; Full-time - At least 50,000 
lb in 1 year between 1988 and June 15, 1993.
    Option 5: Part-time - At least 10,000 lb in 1 year between 1977 and 
June 15, 1993; Full-time - At least 50,000 lb in 1 year between 1977 
and June 15, 1993.
    Option 6: Part-time - Same as Option 1, or 28,000 lb in 1 year 
between 1984 and 1993; Full-time, Tier 1 - Same as Option 2; Full-time, 
Tier 2 - Same as Option 2.
    The Council's preferred alternative was Option 6, which was 
implemented in the final rule implementing the FMP. The proposed action 
would reinstate Option 6 as implemented in this final rule. This action 
would serve to minimize the economic impacts of the overall quota 
established in the FMP by dividing this quota among the vessels that 
qualify under each limited access category. This would enable those 
vessels that are dependant on the tilefish fishery (those vessels in 
the Full-time, tier 1 category) to continue to harvest their share of 
the annua quota in a manner that maximizes their total revenues. If the 
limited entry program is not reinstated, those vessels that are 
dependant on the tilefish resource would be faced with the uncertainty 
of when the overall quota would be harvested, forcing them to fish in a 
manner that does not maximize their total revenues. Furthermore, in the 
absence of a limited entry program, a derby fishery for tilefish could 
occur. A derby fishery could result in large quantities of tilefish 
entering the market, reducing the price received by the vessel, and 
reducing total revenues. A derby fishery would also increase safety 
concerns.
    This proposed rule does not duplicate, overlap or conflict with 
other Federal rules, and does not contain new reporting or 
recordkeeping requirements.
    A copy of this analysis is available from NMFS (see ADDRESSES).

List of Subjects in 50 CFR Part 648

    Fisheries, Fishing, Reporting and recordkeeping requirements.

    Dated: February 4, 2004.
Rebecca Lent,
Deputy Assistant Administrator for Regulatory Programs, National Marine 
Fisheries Service.
    For the reasons set out in the preamble, 50 CFR part 648 is amended 
as follows:

PART 648--FISHERIES OF THE NORTHEASTERN UNITED STATES

    1. The authority citation for part 648 continues to read as 
follows:

    Authority: 16 U.S.C. 1801 et seq.


Sec. 648.14  [Amended]

    2. In Sec. 648.14, paragraph (cc)(6) is removed, and reserved.


Sec. 648.294  [Removed and reserved]

    3. Section 648.294 is removed, and reserved.
[FR Doc. 04-2869 Filed 2-10-04; 8:45 am]
BILLING CODE 3510-22-S